Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for employees of the State of New York as the employer for Contract Year 2023–2024

The New York State Department of Civil Service has published the following Attendance and Leave Bulletin:

Advisory Memorandum 2023-03

Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday [Contract Year 2023–2024]

Text of Advisory Memorandum 2023-03 will be found at:
https://www.cs.ny.gov/attendance_leave/AdvMemo23-03.cfm

If you wish to print Advisory Memorandum 2023-03 the Department offers a version in PDF format at:
https://www.cs.ny.gov/attendance_leave/AM2023-03.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

Efforts to annul the determination of the New York State Division of Human Rights dismissing petitioner's complaint alleging unlawful discrimination rejected

The Appellate Division concluded that the evidence provided to the Administrative Law Judge [ALJ] was sufficient for the ALJ to determine that petitioner in this action did not suffer an adverse employment action as a result of discrimination. Further, said the court,  the additional evidence that petitioner sought to introduce was beyond the scope of the case.

Decided June 30, 2023 

SUPREME COURT OF THE STATE OF NEW YORK 

Appellate Division, Fourth Judicial Department 

PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.

994 TP 22-01050

THE MATTER OF KELLY PHILLIPS, PETITIONER,

v

NEW YORK STATE DIVISION OF HUMAN RIGHTS AND CITY OF ROCHESTER, RESPONDENTS.

JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR PETITIONER.

LINDA S. KINGSLEY, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR GREEN OF COUNSEL), FOR RESPONDENT CITY OF ROCHESTER.

 

Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Sam L. Valleriani, J.], entered June 22, 2022) to review a determination of respondent New York State Division of Human Rights. The determination dismissed the complaint of petitioner.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 and Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR) dismissing her complaint alleging unlawful discrimination. Our review of the determination, which adopted the findings of the Administrative Law Judge (ALJ) who conducted the public hearing, " 'is limited to consideration of whether substantial evidence supports the agency determination' " (Matter of Scheuneman v New York State Div. of Human Rights, 147 AD3d 1523, 1524 [4th Dept 2017], quoting Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [2003]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). " 'Courts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted' " (Matter of Russo v New York State Div. of Human Rights, 137 AD3d 1600, 1600 [4th Dept 2016], quoting Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106 [1987]).

Contrary to petitioner's contention, there is substantial evidence to support the determination that she was not discriminated against based on her gender. To establish a prima facie case of employment discrimination, petitioner was required to demonstrate that she was a member of a protected class, that she was qualified for her position, that she suffered an adverse employment action, and that the adverse action "occurred under circumstances giving rise to an inference of discriminatory motive" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306 [2004]; see Matter of Lyons v New York State Div. of Human Rights, 79 AD3d 1826, 1827 [4th Dept 2010], lv denied 17 NY3d 707 [2011]). We agree with SDHR that petitioner failed to establish that she suffered an adverse employment action arising out of the refusal of the Rochester Police Department (RPD) to issue a smaller service weapon (see Matter of Gordon v New York State Dept. of Corr. & Community Supervision, 138 AD3d 1477, 1478 [4th Dept 2016]; Lyons, 79 AD3d at 1827). Petitioner further failed to demonstrate that any allegedly adverse employment action " 'occurred under circumstances giving rise to an inference of discrimination' " (Gordon, 138 AD3d at 1478, quoting Forrest, 3 NY3d at 308).

Petitioner's contentions concerning other alleged adverse employment actions are not properly before us inasmuch as the adverse action alleged in the complaint filed with SDHR is limited to the RPD's failure to issue petitioner a smaller service weapon (see generally 9 NYCRR 465.3 [c] [3]) and there is no evidence that either petitioner or the SDHR amended the complaint to expand the scope of the case (see 9 NYCRR 465.4 [a], [c]; see generally Matter of Niagara Frontier Transp. Auth. v Nevins, 295 AD2d 887, 887 [4th Dept 2002]; Matter of Presbyterian Hosp. of City of N.Y. v State Div. of Human Rights, 241 AD2d 319, 320 [1st Dept 1997]).

Finally, we conclude that the ALJ did not abuse his discretion in denying petitioner's request to reopen the hearing. The evidence adduced provided the ALJ with a sufficient basis to determine that petitioner did not suffer an adverse employment action as a result of discrimination, and the additional evidence that petitioner sought to introduce was beyond the scope of the case (see 9 NYCRR 465.12 [f] [3], [13]; see generally Matter of Mario v New York State Div. of Human Rights, 200 AD3d 1591, 1592-1593 [4th Dept 2021], lv denied 38 NY3d 909 [2022]; Matter of McGuirk v New York State Div. of Human Rights, 139 AD3d 570, 571 [1st Dept 2016]).

Entered: June 30, 2023

Ann Dillon Flynn

Clerk of the Court

 

Seeking to vacate an arbitrator's award on the ground that it was issued in excess of the arbitrator's power.

In this action seeking to vacate an arbitration award, the employer contended that the arbitrator had exceed his powers in adjudicating the grievance when he:

1. Determined the grievance to be arbitrable; and 

2. Concluded, among other things, that the grievant was entitled to the benefits claimed.

The Appellate Division opined that in the event a "reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA," the matter is arbitrable", sustaining the arbitrator's decisions.

Matter of County of Onondaga (Civil Serv. Empls. Assn., Inc.)

2023 NY Slip Op 03599

Decided on June 30, 2023

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 30, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., LINDLEY, CURRAN, MONTOUR, AND OGDEN, JJ.

329 CA 22-00889

IN THE MATTER OF ARBITRATION BETWEEN COUNTY OF ONONDAGA, PETITIONER-RESPONDENT, AND

and

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ONONDAGA COUNTY LOCAL 834, RESPONDENT-APPELLANT.

DAREN J. RYLEWICZ, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ALBANY (STEVEN M. KLEIN OF COUNSEL), FOR RESPONDENT-APPELLANT.

BOLANOS LOWE, PLLC, PITTSFORD (KYLE W. STURGESS OF COUNSEL), FOR PETITIONER-RESPONDENT.

 

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered May 12, 2022. The order, insofar as appealed from, granted in part the petition to vacate an arbitrator's award.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the petition is denied in its entirety.

Memorandum: Petitioner, County of Onondaga, commenced this proceeding to vacate an arbitrator's award pursuant to CPLR 7511 (b) (1) (iii) on the ground that it was issued in excess of the arbitrator's power. During the underlying arbitration, the arbitrator determined a grievance to be arbitrable and concluded, among other things, that the grievant was entitled to claim benefits under an applicable New York law for November 17-18, 2020. Supreme Court granted the petition in part, vacating that portion of the arbitrator's award with regard to November 17-18, 2020, on the ground that the arbitrator "erroneously" found the matter to be arbitrable and thus exceeded his authority in interpreting the application of statutory entitlements. Respondent, Civil Service Employees Association, Inc., Onondaga County Local 834, now appeals from the order to that extent, and we reverse the order insofar as appealed from and deny the petition in its entirety.

"[J]udicial review of arbitration awards is extremely limited" (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed 548 US 940 [2006]). Generally, courts " 'may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power' " (Matter of Syracuse City Sch. Dist. [Gilbert], 192 AD3d 1643, 1644 [4th Dept 2021], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]).

We agree with respondent that the arbitrator did not exceed his authority when he determined the matter to be arbitrable. The parties' collective bargaining agreement (CBA) defines a grievance as a "claimed violation, misinterpretation or an inequitable application of a specific and express term of [the CBA]." Here, the grievance dealt with an alleged inequitable application of the grievant's leave accruals. We conclude that a reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA and the matter is arbitrable (see Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, 143 [1999]). Notably, the parties included a Conformity to Law provision in the CBA, whereby the CBA and its provisions "are subordinate to any present or future Federal or New York State laws and regulations" (emphasis added).

We conclude that the arbitrator's review of relevant state law did not exceed "a specifically enumerated limitation on [his] power" (Syracuse City Sch. Dist., 192 AD3d at 1644).

Entered: June 30, 2023

Ann Dillon Flynn

Clerk of the Court

New York State Department of Civil Service memorandum and bulletin issued during the week ending June 30, 2023

The New York State Department of Civil Service has posted the items  listed below on the Internet at the URLs indicated in COLOR below:

1.  Transmittal Memorandum No. 49, 2024 Calendar of Legal Holidays and Days of Religious Significance:

    Text of Transmittal Memorandum No. 49 will be found at:
https://www.cs.ny.gov/attendance_leave/TM_49.cfm

    Transmittal Memorandum No. 49 in a version in PDF format is posted at:
https://www.cs.ny.gov/attendance_leave/TM49.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

2. General Information Bulletin 23-03, Civil Service Exam Fee Waiver:

     Text of General Information Bulletin 23-03 will be found at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB23-03.cfm.

      General Information Bulletin 23-03 in a PDF format is posted at:
https://www.cs.ny.gov/ssd/pdf/GIB23-03.pdf.

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm

 

The public policy of the State of New York for firefighters is that disciplinary procedures are terms and conditions of employment subject to mandatory negotiation under the Taylor Law

Matter of Local 32 Intl. Assn. of Firefighters, AFL-CIO, Utica Professional Firefighters Assn. v New York State Pub. Empl. Relations Bd.

2023 NY Slip Op 03383

Decided on June 22, 2023

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 22, 2023

535052

In the Matter of Local 32 International Association of Firefighters, AFL-CIO, Utica Professional Firefighters Association, Appellant,

v

New York State Public Employment Relations Board et al., Respondents.

Calendar Date:May 4, 2023
Before: Garry, P.J., Egan Jr., Clark, Reynolds Fitzgerald and Ceresia, JJ.

Blitman & King LLP, Syracuse (Nathaniel G. Lambright of counsel), for appellant.

New York State Public Employment Relations Board, Albany (Ellen M. Mitchell of counsel), for New York State Public Employment Relations Board, respondent.

William M. Borrill, Corporation Counsel, Utica (Joseph V. McBride of counsel), for City of Utica, respondent.

In June 2016, petitioner filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) alleging that respondent City of Utica, a second class city, violated multiple sections of Civil Service Law article 14 (hereinafter the Taylor Law) by unilaterally changing past practices related to disciplinary interrogations of City firefighters. Following administrative review, PERB concluded that it was constrained to follow Matter of City of Schenectady v New York State Pub. Empl. Relations Bd. (30 NY3d 109 [2017]), in which the Court of Appeals held that police discipline was a prohibited subject of bargaining for cities covered by the Second Class Cities Law (id. at 115-116). In doing so, PERB rejected petitioner's argument that firefighters were differently situated from police officers and, thus, the policy considerations in Matter of City of Schenectady, and the line of cases upon which it relied, were inapposite. Petitioner then commenced this CPLR article 78 proceeding to annul PERB's determination, which respondents moved to dismiss. Supreme Court granted that motion, agreeing with PERB that the disciplinary provisions of the Second Class Cities Law apply with equal force to both police officers and firefighters. Petitioner appeals.

During the pendency of this appeal, the Legislature enacted the New York State Firefighter Bill of Rights Act (L 2022, ch 674), which amended both the Taylor Law and Civil Service Law § 75, addressing removal of and other disciplinary action against public employees. The Senate Introducer's memorandum in support of the bill recognized that "court decisions have noted that . . . several statutes contain[ ] provisions favoring the local control of police and fire discipline that would override the Taylor Law presumption of negotiability," and, against that backdrop, the Legislature saw it necessary to "declare it to be the public policy of the State of New York that[,] for firefighters, disciplinary procedures are terms and conditions of employment subject to mandatory negotiation under the Taylor Law" (Senate Introducer's Mem in Support of 2022 NY Senate Bill S8481, enacted as L 2022, ch 674). The act thus amends the aforementioned statutes accordingly (see Civil Service Law §§ 75 [2-a]; 201 [4]; 204-a [4]). Although, as the City aptly notes, the act expressly states that it applies to proceedings commenced on or after March 1, 2023 (see L 2022, ch 674, § 5), PERB asserts that this newly promulgated legislation directly impacts its analysis and has asked this Court to remit this matter to it for a new determination. Acknowledging these somewhat unusual circumstances, petitioner has agreed that remittal is appropriate. In light of the foregoing, we grant PERB's request and remit the matter to it for further proceedings.

Egan Jr., Clark, Reynolds Fitzgerald and Ceresia, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, determination annulled, and matter remitted to respondent Public Employment Relations Board for further proceedings not inconsistent with this Court's decision.